1

The Honorable Laurie Smith Camp, United States District Judge for the

District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 04-3261 

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * District of Nebraska.

*

David Lee Russell, * [UNPUBLISHED] 

* 

Appellant. *

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Submitted: May 12, 2005

 Filed: May 18, 2005 

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Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.

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PER CURIAM.

David Lee Russell appeals the district court’s1

 denial of his suppression

motion, and he alleges ineffective assistance of counsel during plea bargaining, error

under United States v. Booker, 125 S. Ct. 738 (2005), and ineffective assistance of

counsel for failing to raise Booker error.
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I.

Russell’s first claim is that the district court erred in denying his motion to

suppress evidence seized in what he contends was a search without probable cause.

Under Rule 11(a)(2) of the Federal Rules of Criminal Procedure, a defendant can

enter into a conditional guilty plea and reserve the right to challenge a pre-trial

decision. Russell, however, entered an unconditional guilty plea subsequent to the

district court’s denial of his motion to suppress. Our case law is clear in

circumstances when a defendant does not reserve his rights under Rule 11(a)(2) by

entering into a conditional plea agreement, he cannot challenge pre-trial rulings.

United States v. Arrellano, 213 F.3d 427, 430 (8th Cir. 2000).

Russell counters with there being no waiver of appellate rights in his plea

agreement and his plea was not knowing and voluntary due to his counsel’s

ineffective assistance. He is correct his plea agreement does not contain a waiver of

appellate rights as a general matter, which is why we address his sentencing issues

below, but he did waive his right to challenge pre-trial rulings by unconditionally

pleading guilty. Russell’s claim regarding ineffective assistance of counsel is

cognizable, and we have recognized a plea agreement may not be knowing and

voluntary when it is the result of the ineffective assistance of counsel. See DeRoo v.

United States, 223 F.3d 919, 923-24 (8th Cir. 2000). Ineffective assistance of counsel

claims, however, are generally not reviewed on direct appeal unless the district court

has developed a record on the issue. See United States v. Lee, 374 F.3d 637, 654 (8th

Cir. 2004). Here, the district court did not develop a record on the matter, and

ineffective assistance is not evident on the record before us. Thus, Russell’s

argument of his plea agreement being tainted by the ineffective assistance of counsel

is properly addressed in a 28 U.S.C. § 2255 motion in district court, not on direct

appeal. We therefore do not address the merits of Russell’s ineffective assistance of

counsel claim.
2

While, as noted above, we do not normally address ineffective assistance of

counsel claims on direct appeal, we do address this claim as it fails on the record

before us.

3

Because we determine Russell suffered no prejudice from his counsel’s

alleged deficiencies, we need not determine whether they arose to the level of

constitutional ineffectiveness.

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II.

Russell makes two Booker-related claims regarding his sentencing. First, he

contends error due to the district court’s factfinding and application of the sentencing

guidelines. Second, he alleges ineffective assistance of counsel due to his counsel’s

failure to object to the sentencing proceedings based on Blakely v. Washington, 124

S. Ct. 2531 (2004), despite the case having been handed down approximately two

months before Russell’s sentencing took place.2

Russell’s claim of direct Booker error is reviewed for plain error. Under this

standard, Russell must “show a ‘reasonable probability,’ based on the appellate record

as a whole, that but for the error he would have received a more favorable sentence.”

United States v. Pirani, No 03-2871, slip op. at 11 (8th Cir. Apr. 29, 2005) (en banc).

Similarly, to prevail on a claim of ineffective assistance of counsel, he must show

having suffered prejudice, which means “there is a reasonable probability that, but for

counsel’s errors,” the outcome of the proceedings would have been different.

Strickland v. Washington, 466 U.S. 668, 694 (1984). There is no reasonable

probability Russell would have received a more favorable sentence (and thus the

outcome of the proceedings would have been different) had the alleged errors been

addressed.3

 The district court was obviously aware of the Blakely decision and

explicitly made an alternative ruling if it were not bound by the guidelines, it would

still impose the same sentence. In light of the district court’s explicit conclusion,

Russell cannot show any prejudice stemming from the alleged errors. See United
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States v. Sayre, 400 F.3d 599, 600 (8th Cir. 2005) (finding Booker error to be

harmless when the district court imposed the sentence it felt to be appropriate). 

We therefore affirm the district court.

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